Groia v Law Society of Upper Canada, 2018 SCC 27
What is the standard of review of a Law Society’s misconduct findings. Related, and case specific, what can be said, and how often, in pursuit of one’s position in the criminal justice system.
Frist, the standard of review is reasonableness – per the majority:
In this regard, I agree with Cronk J.A. that “the application of the reasonableness standard of review in cases like this one in no way intrudes on a presiding judge’s authority to control the process in his or her courtroom”: para. 67. Courts and law societies enjoy concurrent jurisdiction to regulate and enforce standards of courtroom behaviour. A trial judge is free to control the conduct in his or her courtroom irrespective of the degree of deference accorded to a law society’s disciplinary decision by a different court.
To be clear, the location of the impugned behaviour is unquestionably relevant to the misconduct analysis itself. As I will explain, the fact that the behaviour occurs in a courtroom is an important contextual factor that must be taken into account when evaluating whether that behaviour amounted to professional misconduct; but it does not impact on the standard of review.
In sum, the Appeal Panel’s decision is reviewed for reasonableness. [@55-57]
Second, what Groia said and how he said it was not professional misconduct:
Mr. Groia’s allegations were made in good faith and they were reasonably based. As such, the allegations themselves could not reasonably support a finding of professional misconduct.
law societies should not sanction lawyers for sincerely held but mistaken legal positions or questionable litigation strategies.
In assessing “what” Mr. Groia said, the Appeal Panel reiterated that misconduct allegations or other challenges to opposing counsel’s integrity cross the line into professional misconduct unless they are made in good faith and have a reasonable basis. The Appeal Panel accepted that Mr. Groia’s allegations of misconduct were made in good faith. It based its finding of professional misconduct primarily on the fact that his allegations lacked a reasonable basis. However, contrary to its own approach, the Appeal Panel used Mr. Groia’s sincerely held but erroneous legal beliefs to reach this conclusion — one which, as I have explained above at paras. 88-91, cannot be reasonable.
Once the allegations of impropriety — what Mr. Groia said — are no longer in the mix, it becomes apparent that the other factors in this case cannot reasonably support a finding of professional misconduct against him. As I will explain, the frequency of Mr. Groia’s allegations was, to some extent, a product of the uncertainty surrounding the manner in which abuse of process allegations should be raised — a factor the Appeal Panel did not consider.
The Appeal Panel’s finding of professional misconduct against Mr. Groia was unreasonable. The Appeal Panel used Mr. Groia’s sincerely held but mistaken legal beliefs to conclude that his allegations of prosecutorial misconduct lacked a reasonable basis. But, as I have explained, Mr. Groia’s legal errors — in conjunction with the OSC prosecutor’s conduct — formed the reasonable basis upon which his allegations rested. In these circumstances, it was not open to the Appeal Panel to conclude that Mr. Groia’s allegations lacked a reasonable basis. And because the Appeal Panel accepted that the allegations were made in good faith, it was not reasonably open for it to find Mr. Groia guilty of professional misconduct based on what he said. [@7, 85, 122-123, 159]
The Fine Print:
Takeaway points. First, the criminal justice system is no tea party:
To achieve their purpose, it is essential that trials be conducted in a civilized manner. Trials marked by strife, belligerent behaviour, unwarranted personal attacks, and other forms of disruptive and discourteous conduct are antithetical to the peaceful and orderly resolution of disputes we strive to achieve.
By the same token, trials are not — nor are they meant to be — tea parties. A lawyer’s duty to act with civility does not exist in a vacuum. Rather, it exists in concert with a series of professional obligations that both constrain and compel a lawyer’s behaviour. Care must be taken to ensure that free expression, resolute advocacy and the right of an accused to make full answer and defence are not sacrificed at the altar of civility.] @2-3]
Second, the bar for misconduct has been set, arguably quite high. Putting the conduct that the majority condoned in context is helpful to appreciate just where (or how high) that bar lies. The Appeal Panel characterized the conduct this way:
Taken as a whole, the submissions we have excerpted can best be described as a relentless personal attack on the integrity and the bona fides of the prosecutors. It is important to emphasize that the examples we have selected provide some flavour, but it is difficult to convey the cumulative effect of the unabated repetition over the course of 10 hearing days of Mr. Groia's vehement and very lengthy attacks on the prosecutors.
These attacks were personal in nature. ... Taken together, in context, over the course of this lengthy trial, it is very clear that they were decidedly personal.
These attacks were aimed at the integrity of the prosecutors, by repeatedly asserting that they had broken their 'promises' and could not be relied on to do what they represented to the court and were, in a word, untrustworthy.
These attacks also included numerous allegations of deliberate prosecutorial misconduct: that the prosecutors intended to 'win at all costs', that their conduct offended the ethical principle that the duty of the Crown is not to seek a conviction, that they were deliberately putting the evidence though a 'conviction filter', and, most troubling, that they were intentionally acting so as to ensure that Mr. Felderhof did not obtain a fair trial.
Nothing the prosecutors did justified this onslaught. These attacks on their integrity and bona fides did not have a reasonable basis.
. . . . .
Likewise, we conclude that Mr. Groia had no reasonable basis on which to attack either the integrity of the prosecutors or their motives. The prosecutors had not promised that they would introduce all relevant documents, regardless of the rules of evidence. They were under no obligation to call evidence favourable to the defence. They had not resiled from their promises. Their positions on evidentiary issues were not improper and were often correct.
. . . . .
[A]ccepting that Mr. Groia was not deliberately misrepresenting the law and was not ill-motivated, we are nevertheless satisfied that Mr. Groia's misconduct had a serious adverse impact on the trial, by causing numerous delays in the evidence of the trial's first witness, by distracting the prosecutors from the presentation of the evidence, and by forcing the trial judge to become involved in many unnecessary disputes.
The ONCA, 2016 ONCA 471, agreed:
Having reviewed the relevant parts of the record, described in part above, I conclude that these critical findings were amply justified. Mr. Groia's remarks on the days in question, quoted above, were uncivil and discourteous and exceeded even the most broadly defined reasonable boundaries of zealous advocacy. They struck, without a reasonable basis, at the heart of the OSC prosecutors' duties to the court, to opposing counsel and to the administration of justice — in short, at their most basic duties as 'ministers of justice' and officers of the court. They also affected the orderly progression of the trial and the dignity of the proceedings and contributed to the delay in the completion of the testimony of the first witness at trial. [@211]
The dissent at the SCC commented on their concerns about the fallout from the ruling including citing possible impacts by “immunizing accusations based on honestly believed legal errors; validating uncivil conduct; and undermining the administration of justice:
Condoning Mr. Groia’s conduct risks eroding civility in courtrooms and increasing the pressures on an already strained system. Moreover, setting aside the decision of the Appeal Panel has the potential to undermine the ability of law societies to promote the efficient resolution of disputes. Law societies are important actors in the culture change we need. Through their enabling legislation, they are provided with the authority to sanction lawyers who commit professional misconduct and, in turn, promote efficiency in our system. They should be empowered to do that, not undermined through second-guessing by the courts. Their decisions respecting professional misconduct should be approached with deference. [@231]